Citation Nr: 1800900 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-33 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for arterial hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran had active service from December 1971 to April 1972 and from July 1978 to November 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and has subsequently transferred to the St. Petersburg, Florida, RO. A videoconference hearing before the undersigned Veterans Law Judge was held in February 2016. A transcript of the hearing has been associated with the claims file. In July 2016, the Board remanded the claims for entitlement to service connection for obstructive sleep apnea and an increased disability rating in excess of 10 percent for arterial hypertension. However, during the pendency of the appeal, in an October 2016 rating decision, the RO granted service connection for sleep apnea. As this represents a full grant of the benefit sought, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Pursuant to the Board's remand, the agency of original jurisdiction (AOJ) scheduled the Veteran for appropriate VA examinations, searched for outstanding VA treatment records, provided appropriate notice to the Veteran, and issued a supplemental statement of the case with regard to the claim for an increased disability rating in excess of 10 percent for arterial hypertension. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). FINDING OF FACT The Veteran does not have diastolic blood pressure that is predominantly 110 or more or systolic blood pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for arterial hypertension are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321(b), 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice most recently in August 2016. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Law and Regulations Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent law and regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's hypertension is assigned a 10 percent rating under Diagnostic Code 7101. 38 C.F.R. § 4.104 (2017). Diagnostic Code 7101 provides a 10 percent rating for evidence showing diastolic pressure of predominately 100 or more, or; systolic pressure of predominately 160 or more; or as a minimum rating for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided for evidence of diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is provided for evidence of diastolic pressure of predominantly 120 or more. A 60 percent rating is provided for evidence of diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). II. Factual Background On a March 2009 VA Primary Care Note, the Veteran's blood pressure was reported as 121/89. On an August 2009 VA Primary Care Note, the Veteran's blood pressure was reported as 141/89. On a November 2009 VA Primary Care Note, the Veteran's blood pressure was reported as 119/72. At a March 2010 VA Hypertension examination, it was noted that the Veteran's blood pressure has been controlled with medical treatment. The Veteran denied any chest pain or myocardial infraction. The Veteran's blood pressure readings were 122/94, 120/100, and 122/98. On a March 2010 VA Primary Care Note, the Veteran's blood pressure reading was 139/84. On a May 2010 VA Primary Care Note, the Veteran's blood pressure reading was 146/86. On September 2010 VA Primary Care Note, the Veteran's blood pressure reading was 127/84. On a February 2011 VA Primary Care Note, the Veteran's blood pressure reading was 128/80. In his April 2011 Notice of Disagreement, the Veteran reported that he was diagnosed with high blood pressure in 1987 and that he has been receiving medication for this condition ever since. The Veteran noted that he has submitted evidence that shows that the dosage of the prescribed medication for his hypertension has increased over the years and that it was only logical to presume that his current diastolic readings would not exceed 110 or his systolic reading would not exceed 200 because the medication that he took on a daily basis did not permit for this to happen. On a June 2011 VA Primary Care Note, the Veteran's blood pressure was reported as 137/88. On a February 2012 VA Primary Care Note, the Veteran's blood pressure was reported as 136/89. On a June 2012 VA Primary Care Note, the Veteran's blood pressure was reported as 129/78. On a March 2013 VA Primary Care Note, the Veteran's blood pressure was reported as 129/78. On a June 2013 VA Primary Care Note, the Veteran's blood pressure was reported as 169/92. On a June 2013 VA Primary Care Note, the Veteran's blood pressure was reported as 147/87. On a July 2013 VA Primary Care Note, the Veteran's blood pressure was reported as 135/88. On a November 2013 VA Primary Care Note, the Veteran's blood pressure was reported as 132/93. On a September 2014 VA Primary Care Note, the Veteran's blood pressure was reported as 146/91. On a September 2014 VA Evaluation Clinic Note, the Veteran's blood pressure was reported as 145/94. On an October 2014 VA Initial Outpatient Note, the Veteran's blood pressure was reported as 117/75. On a May 2015 VA Primary Care Note, the Veteran's blood pressure was reported as 149/89. On a July 2015 VA Primary Care Note, the Veteran's blood pressure was reported as 137/84. At a February 2016 Board Videoconference hearing, the Veteran reported that he is taking medication to control his hypertension and that he sees a coronary specialist every six months. The Veteran noted that the dosage for his medication has increased significantly. The Veteran indicated that he felt dizzy when he forgot to take his hypertension medication. On a February 2016 VA Primary Care Note, the Veteran's blood pressure was reported as 122/76. On an August 2016 VA Addendum, the Veteran's blood pressure was reported as 123/79. On an August 2016 VA Nurse Ambulatory Care Note, the Veteran's blood pressure was reported as 134/79. At a September 2016 VA Hypertension examination, the Veteran reported that he was diagnosed with high blood pressure back in the 1980s. The Veteran indicated that he required multiple blood pressure medications to control his blood pressure. The Veteran's blood pressure was reported as 158/89, 154/90, and 150/88. The average blood pressure was 154/89. The examiner noted that the Veteran's mild to moderate blood pressure elevation at the examination was most likely due to the presence of resolving acute respiratory illness and the fact that the Veteran ran out of one of his blood pressure medications. III. Analysis The Veteran's hypertension is assigned a 10 percent rating under Diagnostic Code 7101. 38 C.F.R. § 4.104 (2017). Diagnostic Code 7101 provides a 10 percent rating for evidence showing diastolic pressure of predominately 100 or more, or; systolic pressure of predominately 160 or more; or as a minimum rating for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided for evidence of diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is provided for evidence of diastolic pressure of predominantly 120 or more. A 60 percent rating is provided for evidence of diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). As the Veteran presently has a 10 percent rating throughout the period on appeal, in order to warrant a higher, 20 percent rating, the evidence must show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Based on a review of the evidence, the Veteran does not meet the criteria for a higher rating for hypertension. Although the Veteran has been taking blood pressure medication to control his hypertension, he has not at any time been shown to have a diastolic pressure above 110 or a systolic pressure 200 or above. The Veteran's medical history and multiple blood-pressure readings support this finding. The VA examination report dated in March 2010 indicates that the blood pressure readings were as follows: 122/94, 120/100, and 122/98. The VA examination report dated in September 2016 indicates that the blood pressure readings were as follows: 158/89, 154/90, and 150/88. The VA treatment records reflect that the Veteran's blood pressure has been obtained on numerous occasions and in pertinent part, these records show his highest systolic reading as 169/92 in June 2013 and his highest diastolic reading as 145/94 in September 2014. Thus, the Board must conclude that the medical evidence does not demonstrate that the Veteran's hypertension more nearly approximates diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, to warrant a rating in excess of 10 percent under Diagnostic Code 7101. 38 C.F.R. § 4.104. Because he does not meet the criteria for a 20 percent rating, it follows that he also does not meet the criteria for an even higher rating. The Board recognizes that a layperson is competent to describe what comes to him or her through the senses. See Layno v. Brown, 6 Vet.App. 465 (1994). The Veteran can assert that his hypertension is worse than currently rated. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, to the extent that the Veteran asserts that his service-connected hypertension is worse than evaluated, the Board points out that the predominant findings on the VA clinical examinations and treatment reports over the years do not establish that he has more severe disability in this respect. As his assertions do not directly address the rating criteria, they do not provide a basis for a higher evaluation. Accordingly, the preponderance of the evidence is against the assignment of a rating greater than 10 percent, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for arterial hypertension is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs